One can reasonably question whether the Supreme Court ought to jettison the special needs test entirely: after all, the Fourth Amendment’s text says nothing about the particular type of search nor suggests in any way that a search by a police officer ought to be treated differently than a search by a social worker or health inspector.219
I do not share this view. The special needs test has the potential to allow the Fourth Amendment to regulate meaningfully and rationally the wide variety of searches and seizures performed by the modern administrative state and the different privacy interests those actions involve. The test reflects three important values.
First, drawing a bright line recognizes that many administrative searches involve minimal privacy intrusions while providing important social benefits and permits those to occur without allowing them to serve as cover for more invasive government action. Camara dealt with a housing code search, and the Court acknowledged the “vigorous” case “that the health and safety of entire urban populations is dependent upon enforcement of minimum fire, housing, and sanitation standards, and that the only effective means of enforcing such codes is by routine systematized inspection of all physical structures.”220
Modern constitutional law respects this role of
219. See id. at 758 (describing as false Fourth Amendment case law’s distinction between criminal and civil purposes because the Amendment’s text “applies equally to civil and criminal law enforcement” and “[i]ts history is not uniquely bound up with criminal law”).
220. Camara v. Mun. Court, 387 U.S. 523, 533 (1967). An earlier case, not decided on constitutional grounds, addressed health department inspections. District of Columbia v. Little, 339 U.S. 1 (1950).
400 TULANE LAW REVIEW [Vol. 87:353 government, and the special needs doctrine protects that role from overly burdensome Fourth Amendment regulation. Accordingly,
Camara acknowledged that the warrant requirement may be
inappropriate if “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” a theme reiterated by the Supreme Court and lower courts.221
Conversely, the special needs test also provides a mechanism to ferret out administrative searches used as subterfuge for criminal investigations, and the Supreme Court’s record shows the promise of enforcing a line between true special needs and something else.
Ferguson II aptly demonstrates the Court’s ability to enforce the line.
But it is not the only case. In a series of highway checkpoint cases, the Court has distinguished between those with a primary purpose of “general . . . crime control” and those focusing on “roadway safety.”222
A highway checkpoint with the “primary purpose of interdicting illegal narcotics” does not qualify for the special needs doctrine,223
while a “sobriety checkpoint” to take drunk drivers off the road, and thus prevent accidents in the immediate future, does.224
In analogous areas, state courts have distinguished between police who entered a home to determine if unconscious individuals had overdosed on drugs and needed medical attention from police who seized a teenager in no
221. Camara, 387 U.S. at 533; see also, e.g., O’Connor v. Ortega, 480 U.S. 709, 721 (1987); Marshall v. Barlow’s, Inc., 436 U.S. 307, 316 (1978) (discussing a potential warrant requirement’s burden on the Occupational Safety and Health Act’s entire regulatory scheme); Tenenbaum v. Williams, 193 F.3d 581, 603 (2d Cir. 1999) (“If forcing a non law-enforcement government officer to follow ordinary law-enforcement requirements under the Fourth Amendment would impose intolerable burdens on the officer or the courts, would prevent the officer from taking necessary action, or tend to render such action ineffective, the government officer may be relieved of those requirements and subjected to less stringent reasonableness requirements instead.”).
222. Delaware v. Prouse, 440 U.S. 648, 659 n.18 (1979). 223. City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).
224. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990). Sitz is not directly framed as a special needs decision. In response to plaintiffs’ argument that there was no special need beyond law enforcement because drunk drivers were not only taken off of the road but arrested and charged with driving under the influence, the Court said that a separate body of “prior cases dealing with police stops of motorists on public highways” governed, and that those cases permitted a balancing test. Id. at 450. That statement was somewhat odd since Justice Blackmun had cited some of those highway stop cases in his T.L.O. special needs opinion. New Jersey v. T.L.O., 469 U.S. 325, 352 (1985) (Blackmun, J., concurring) (citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Birgnoni- Ponce, 422 U.S. 873 (1975)). Regardless, the result is the same as it would have been if the Court had explicitly found a special need. (The Court went on to apply a balancing test to determine if the stops were reasonable).
2012] BEYOND LAW ENFORCEMENT 401 obvious distress whom they suspected of drug involvement.225
One need not agree with the precise lines courts have drawn (for instance, one can question whether a sobriety checkpoint designed both to take drunk drivers off the road and to arrest and charge them with driving under the influence ought to qualify for the special needs doctrine) to recognize that the line exists and thereby provides some meaningful protection of Fourth Amendment interests.
I acknowledge that the Court’s record in policing against subterfuge is imperfect. Justice Blackmun, the original author of the special needs test, was rightly criticized in Burger for applying a special needs framework to a search designed to determine if a vehicle-dismantling business possessed stolen property.226
Other courts have engaged in some intellectual contortions to fit a particular search on the special needs, and not ordinary law enforcement, side of the line. For instance, a Ninth Circuit panel held that the search of a computer that was suspected to have been the source of recent and potentially ongoing hacking into a public university’s network was justified by the special needs doctrine.227
The search was done in consultation with police officers to protect the university’s server and network from the effects of a federal crime (recklessly causing damage by intentionally accessing a protected computer without authorization).228
Distinguishing a search conducted in consultation with law enforcement to prevent or interrupt an ongoing crime from a search for ordinary law enforcement purposes is far too fine a distinction.
Courts’ difficulty in enforcing the line between true special needs cases and law enforcement searches and seizures arises with greater frequency when courts do not respect the boundaries of the special needs doctrine discussed above.229
That was the case in Burger, which was largely decided based on the reduced expectation of privacy held
225. Compare State v. Pinkard, 785 N.W.2d 592 (Wis. 2010) (finding that officers were engaged in a community-care function because they had received a tip about someone sleeping next to drugs, arrived to find the front door open, and knocked and received no response before entering), with State v. Kinzy, 5 P.3d 668 (Wash. 2000) (en banc) (finding that officers were reasonable in approaching a small, teenage girl in a high-narcotics area to determine whether she was at risk but had no right to seize her when she tried to walk away).
226. New York v. Burger, 482 U.S. 691, 724 (1987) (Brennan, J., dissenting). Whether Justice Blackmun’s point that a “closely regulated” business had a reduced expectation of privacy justifying a warrantless search is valid, apart from his misapplication of his own special needs framework, is a point beyond the scope of this Article. Id. at 613-14.
227. United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007). 228. Id. at 1144-46 (citing 18 U.S.C. § 1030(a)(5)(B)).
402 TULANE LAW REVIEW [Vol. 87:353 by a “closely regulated” business.230
Lower court cases showing difficulty policing the special needs line similarly confuse reduced privacy cases with special needs cases. One Ninth Circuit judge, echoing several circuit courts, has written that extracting DNA from convicted criminals counts as a special need when done to aid the offender’s “rehabilitation through deterrence,” even if that action will, “of course[,] aid in catching him” if said rehabilitation fails.231
A later Ninth Circuit opinion held that taking a convict’s DNA for purposes of including it in a “cold case file” renders the special needs doctrine inapplicable.232
This distinction only teaches law enforcement officials to assert a goal of “rehabilitation through deterrence” rather than catching repeat offenders. It would be more appropriate to determine whether the fact of a criminal conviction so reduces the individual’s reasonable expectation of privacy that extracting their DNA does not violate their Fourth Amendment rights.
Second, a test designed to permit the administrative state to function helpfully focuses Fourth Amendment doctrine on the machinery of the administrative state and incentivizes legislative and regulatory standards to protect individual privacy. Thus, in Burger, Justice Blackmun wrote for the Court that to justify an exception to the warrant requirement, a regulatory scheme must adequately substitute a warrant by giving notice that particular searches are lawful, with a delineation of the search’s scope that limits the discretion of state officials performing such searches.233
Again, the potential for poor application of this regulatory and legislative focus lies in the fact that
Burger itself exemplifies how the Supreme Court’s examination of a
regulatory regime’s adequacy can be “flaccid.”234
But Burger’s discussion of how a detailed regulatory regime can provide the same value that a warrant provides is an important element of explaining the value of the special needs test, which also permits replacement of a
230. 482 U.S. 691, 693 (1987); see supra note 195 and accompanying text.
231. United States v. Kincade, 379 F.3d 813, 841 & n.2 (9th Cir. 2004) (Gould, J., concurring). Various state and federal courts have upheld mandatory DNA testing of convicts under a special needs analysis. Id. at 830-31 (majority opinion) (collecting cases); see also
Sandra J. Carnahan, The Supreme Court’s Primary Purpose Test: A Roadblock to the National Law Enforcement DNA Database, 83 NEB.L.REV. 1, 19-28 (2004) (arguing that special needs justify DNA databases).
232. Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009).
233. 482 U.S. 691, 703 (1987). Whether Justice Blackmun’s analysis lived up to that standard in Burger is another matter. Primus argues it failed to do so. Primus, supra note 14, at 283-84.
234. See Schulhofer, supra note 4, at 98; see also id. at 102-03 (describing the relatively minimal limits imposed by the regulatory scheme at issue).
2012] BEYOND LAW ENFORCEMENT 403 warrant requirement with an administrative scheme. It also creates
incentives for legislatures and agencies to more specifically delineate procedures for special needs searches and seizures to increase the likelihood of deference to challenged searches and seizures,235
and thus to impose some modest limits on official discretion to balance administrative search regimes with individual privacy and reduce the wide variations in responses to similar facts.236
Third, through its focus on “programmatic purpose”237
(rather than individual officials’ subjective intent), the special needs doctrine creates an incentive for policy makers to limit the most invasive form of state intervention. Commentators have recognized how the special needs test encourages state and local governments to “develop more effective, flexible approaches” to various social problems “without imposing the often ignored costs of enlarging the scope of criminal liability.”238
The school setting at issue in T.L.O. provides the most-apt examples of the special needs doctrine’s incentive structure. T.L.O.
and its progeny encouraged school districts that are developing drug testing policies to draw bright lines in those policies (the districts whose drug test policies were upheld in Vernonia School District 47J
v. Acton and Board of Education v. Earls decided, by policy, to neither
threaten to, nor actually, turn over drug test results to the juvenile justice system and instead offered those students assistance and less- severe, non-law-enforcement punitive consequences). Whatever the pedagogic or disciplinary benefits of those drug tests, the special needs test helps limit those policies to school issues and avoid more-severe consequences.239
T.L.O. has been less successful at limiting the severity of state
intervention following school disciplinary incidents. School districts and law enforcement agencies have grown closer to a point that the mainstream media has prominently explored—how fourth graders’ school-yard offenses can become law enforcement and courtroom matters—and the United States Attorney General and United States
235. Amar, supra note 116, at 816-17. 236. Amsterdam, supra note 135, at 416-19. 237. Ferguson II, 532 U.S. 67, 81 (2001).
238. Alafair S. Burke, Unpacking New Policing: Confessions of a Former Neighborhood District Attorney, 78 WASH.L.REV. 985, 1062-63 (2003).
239. For example, Justice Ginsburg challenged the reasonableness of a policy that required of drug testing all students engaged in extracurricular activities, which was upheld in
Earls, for irrationally “steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.” Bd. of Educ. v. Earls, 536 U.S. 822, 853 (2002) (Ginsburg, J., dissenting).
404 TULANE LAW REVIEW [Vol. 87:353 Secretary of Education have called for such practices “to stop.”240
This problem results from an inability to enforce T.L.O.’s rule. Summarizing school search cases, the Illinois Supreme Court has observed that the decisive variable tends to be the level of involvement of law enforcement officers in particular searches.241
While police involvement in a particular search certainly is relevant, overempha- sizing this point violates Ferguson II’s instruction to focus on the programmatic purpose of many of these searches. That purpose is increasingly to identify evidence to turn over to law enforcement, a trend which should lead (but has not yet led) courts to enforce more seriously the special needs test in school contexts. Schools would have authority to maintain safety and discipline, but should be prevented from routinely and programmatically turning school-yard offenses into criminal cases, a key element of the school-to-prison pipeline.242
Schools should be forced to choose between using the informal procedures permitted by T.L.O. for school disciplinary consequences only or the more formal warrant and probable cause procedures if they turn students over to law enforcement.
Child protection investigations could provide another example of the programmatic purpose test’s value if the special needs doctrine focused on serious non-law-enforcement consequences. Requiring probable cause and a warrant before seizing children for interviews or inspecting homes would impose an administrative burden on state child protection officials.243
That burden creates an important and valuable incentive for those officials to find some alternative means to achieve their goals without triggering those Fourth Amendment
240. Donna St. George, Texas Students Sent from Classroom to Courtroom, WASH. POST (Aug. 21, 2011), http://www.washingtonpost.com/local/education/in-texas-schools-a- criminal-response-to-misbehavior/2011/08/04/gIQA5EG9UJ_story.html (summarizing the conviction of a Houston-area fourth grader for fighting on a school bus and reporting on statements of United States Attorney General Eric Holder and United States Department of Education Secretary Arne Duncan).
241. People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996); see also Feld, supra note 162, at 889 (“Courts’ assessments of the proper standard—reasonable suspicion or probable cause—to search often hinge on whether a school official or a police officer initiated it.”). 242. Kagan, supra note 148, at 310-12.
243. An administrative burden must be distinguished from a burden that would prevent the government from achieving its purpose in child protection investigations. The defendants in Camreta argued that the latter was the case, an argument which requires establishing that obtaining a warrant would prevent the government from adequately investigating alleged abuse. Brief for Petitioner at 43-46, Camreta v. Greene, 131 S. Ct. 2020 (2011) (Nos. 09- 1478 and 09-1454), available at http://www.americanbar.org/content/dam/aba/publishing/ preview/publiced_preview_briefs_pdfs_09_10_09_1478_PetitionerJamesAlford.authcheckda m.pdf. That point was contested by S.G. Brief for Respondents, supra note 50, at 53.
2012] BEYOND LAW ENFORCEMENT 405 protections. As discussed above, the majority of child protection
investigations involve relatively low-risk allegations, and the vast majority do not lead to removals,244
leading some child protection systems to develop differential response systems.245
These systems ask families who are the subject of low-risk allegations to participate in voluntary “family assessments” to determine which, if any, services would help the family and help keep the children safe. Such families generally would not be subject to substantiation for abuse or neglect or removal of children.246
Crucially, the core, fundamental right of family integrity would not be at stake with such assessments; thus, the special needs doctrine would apply. Investigative resources, including those necessary to seek warrants and document probable cause, would focus on higher-risk cases. Some jurisdictions now assign up to 70% of abuse and neglect allegations to family assessment tracks,247
something that more meaningful Fourth Amendment protections could make the norm.
Incentivizing family assessment tracks will reduce invasions of children’s and families’ privacy and likely serve children’s interests more effectively than the status quo of investigating all children who are the subject of child protection hotline reports. One of the remarkable features of the status quo is how little good is done when child protection authorities investigate families for suspected abuse or neglect but do not remove children.248
A longitudinal study of children who had been the subjects of a child maltreatment investigation found that these children, as compared to children with similar family problems but no child protection contact, had no perceptible differences in social support, family functioning, or child behavior problems.249
The bottom line, as the study’s title states, is that these investigations were “A Missed Opportunity for Prevention”
244. Seesupra notes 26-38 and accompanying text. 245. Seesupra note 38 and accompanying text.
246. A child protection agency might still choose to investigate a family assigned to an assessment track. See, e.g., D.C.CODE § 4-1301.04(c)(3) (2012). States’ experience with differential response suggest that such decisions are made rarely. See, e.g., VA.DEP’T OF SOC. SERVS.,EVALUATION OF THE DIFFERENTIAL RESPONSE SYSTEM 12 (2008), available at http://
www.dss.virginia.gov/files/about/reports/children/cps/all_other/2008/differentialresponsesyst em_evaluation_annualreport_2008_12-08.pdf (reporting that only 2% of families referred to an assessment track were subsequently referred for an investigation).
247. VA.DEP’T OF SOC.SERVS., supra note 246, at 5.
248. I do not advocate removing these children. Rather, I advocate for more-effective interventions to resolve serious problems without traumatizing children via removal.
249. Kristine A. Campbell et al., Household, Family, and Child Risk Factors After an Investigation for Suspected Child Maltreatment: A Missed Opportunity for Prevention, 164 ARCHIVES PEDIATRIC ADOLESCENT MED. 943, 943 (2010).
406 TULANE LAW REVIEW [Vol. 87:353 (specifically, to provide proven services).250
The study’s findings were so dramatic that the medical journal that published the study simultaneously published an editorial radically asserting that “Child Protective Services has outlived its usefulness” and recommending that the better response to allegations of neglect is to provide various service interventions rather than formal investigations.251
These incentive benefits are less powerful under an older proposal to reform the special needs doctrine. In 1989, Stephen Schulhofer proposed drawing a bright line between state action to exert “social control” over “private activity” and “searches in aid of the internal governance objectives of public enterprises” (such as school discipline), with any search or seizure serving internal governance subject only to a reasonableness analysis.252
This approach would create incentives to avoid social control and thus maximize liberty, an important benefit.253
But once a search or seizure qualifies as an internal governance action, the Fourth Amendment incentive for the state to limit the extent to which an action invades individual liberty would disappear. The potential to incentivize less-liberty-infringing responses to school disciplinary incidents, which Schulhofer categorizes as internal governance issues,254
would be lost.
B. Reasonably Foreseeable Consequences to Fundamental